—Prospective Unit Owner
“The relevant court wrote that, at least where an existing home is “so substantially reconstructed by a rebuilder that the end product, when placed on the market, is the functional equivalent of a new house, then an implied warranty runs from the reseller to the purchaser who buys in reliance on the structure being fit for intended residential purchase.”
“A question remains as to the validity of express disclaimers of implied warranty by builder-vendors. New Jersey law does provide guidance as to the enforceability of disclaimers of other implied warranties. Pursuant to N.J.S.A. 12A:2-316(2), both the implied warranty of merchantability and the implied warranty of fitness for a particular purpose may be disclaimed. To disclaim the warranty of merchantability, the disclaiming language, when written, must be conspicuous, and the disclaimer must include the word “merchantability.” To disclaim the warranty of fitness for a particular purpose, the disclaimer must be in writing and conspicuous. Both warranties may also be disclaimed by expressions like “as is,” “with all faults” or other language which “in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty.”
“As to the enforceability of clauses purporting to disclaim or waive the implied warranty of habitability, jurisdictions across the United States take varying approaches. In some states, a disclaimer is enforceable but must be expressed in clear and conspicuous language which fully discloses the specific protections that are being waived and the parties’ intent that the warranty not apply. In others, disclaimers of the warranty of habitability are invalid as a matter of public policy. Given the recognition by New Jersey courts of a “far-reaching warranty of habitability,” and the expressed intention of the New Jersey Legislature to protect homeowners resulting in the New Home Warranty and Builders’ Registration Act, any disclaimer or waiver of the implied warranty of habitability would be strictly construed."